Shed, Kenneth

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-43,740-02

EX PARTE KENNETH SHED, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. DC-2023-CR-1018-A IN THE 140TH DISTRICT COURT
OF LUBBOCK COUNTY

SLAUGHTER, J., filed a concurring opinion.

CONCURRING OPINION

I join in the Court’s decision to grant Applicant post-conviction habeas corpus relief

in the form of an out-of-time appeal. I write separately to emphasize, yet again, the

importance of counsel’s duty to file a timely notice of appeal when his client expresses a

desire to appeal. Here, both trial and appellate counsel failed to take adequate steps to

protect Applicant’s appellate rights. This type of problem underlies far too many

ineffective-assistance-of-counsel cases before us and is a troubling sign that many

attorneys are routinely neglecting their responsibilities in this regard, thereby resulting in
Shed - 2

unfairness to clients and excessive corrective post-conviction litigation that wastes judicial

resources.

I. Factual Background

On June 2, 2023, a jury convicted Applicant of three counts of aggravated sexual

assault of a child, 1 three counts of sexual assault of a child, 2 and one count of indecency

with a child by contact. 3 After finding that Applicant had been convicted of felonies on

two prior occasions, 4 the jury sentenced Applicant to seven life sentences, which the trial

court ordered to be served concurrently. No motion for new trial was filed. Thus, the

deadline to file a notice of appeal was July 3, 2023—30 days after the sentences were

imposed. See TEX. R. APP. P. 26.2(a)(1). Applicant expressed a desire to pursue an appeal,

but trial counsel withdrew from the case without filing a notice of appeal.

On June 5, 2023, following trial counsel’s withdrawal, the trial court appointed

appellate counsel to handle Applicant’s direct appeal. Appellate counsel knew that trial

counsel had not filed a notice of appeal and that Applicant wanted to appeal, yet she waited

to file a notice of appeal until July 5, 2023—two days after the deadline. 5

1
See TEX. PENAL CODE § 22.021(a)(2)(b).
2
See TEX. PENAL CODE § 22.011(a)(2).
3
See TEX. PENAL CODE § 21.11(a)(1).
4
See TEX. PENAL CODE § 12.42 (enhancing penalties for repeat and habitual felons).
5
Appellate counsel filed a motion for new trial concomitantly with the notice of appeal. However,
because the motion for new trial was also untimely, it did not extend the deadline to file the notice
of appeal. See TEX. R. APP. P. 21.4 (providing that motion for new trial must be filed no later than
30 days after trial court’s imposition of sentence in open court); 26.2(a)(2) (providing for extension
Shed - 3

On July 10, 2023, the Seventh Court of Appeals sent Applicant a letter notifying

him that the notice of appeal was untimely. Shed v. State, No. 07-23-00245-CR, 2023 WL

4881932, at *1 (Tex. App.—Amarillo July 31, 2023, no pet.) (mem. op., not designated for

publication). The court of appeals advised Applicant to file a motion for extension of time

within the 15-day extension period permitted under Texas Rule of Appellate Procedure

26.3, 6 and it further explained that failure to file such a motion for extension would result

in the appeal being dismissed. Id. Despite this warning, appellate counsel failed to file a

motion for extension. Therefore, the court of appeals dismissed the appeal for want of

jurisdiction. Id.

Applicant then filed the instant post-conviction habeas application asking for an out-

of-time appeal. He alleges that his appellate counsel was ineffective for failing to timely

file a notice of appeal and for failing to file a motion for extension of time. As a result,

Applicant claims that he was deprived of his right to a direct appeal through no fault of his

own.

In response to the allegations, appellate counsel submitted an affidavit in which she

concedes that she improperly calculated the deadline for filing a notice of appeal and that,

as a result, she filed the notice of appeal two days late. Appellate counsel’s affidavit did

of time to file notice of appeal to 90 days after the day the sentence is imposed “if the defendant
timely files a motion for new trial”).
6
See TEX. R. APP. P. 26.3 (“The appellate court may extend the time to file the notice of appeal if,
within 15 days after the deadline for filing the notice of appeal, the party: (a) files in the trial court
the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b).”).
Shed - 4

not explain why she failed to respond to the court of appeals’ instructions to file a motion

for extension of time to file the notice of appeal.

The habeas court found that appellate counsel was deficient for failing to timely file

the notice of appeal. It also found that but for appellate counsel’s error, Applicant would

have pursued a direct appeal, and that Applicant still desires to appeal. Thus, the habeas

court recommends that this Court grant Applicant relief in the form of an out-of-time

appeal.

II. Trial and Appellate Counsel’s Post-Judgment Duties

While it is regrettable that appellate counsel failed to timely file the notice of appeal

based on her mistaken calculation of the applicable deadline, this situation could have been

avoided altogether if trial counsel had simply ensured that the notice of appeal was filed at

the conclusion of his representation. Indeed, as this Court has repeatedly stated, and as I

have emphasized in numerous recent opinions, if the defendant expresses a desire to appeal

it is principally the duty of trial counsel (not appellate counsel) to ensure that the notice of

appeal is timely filed upon the conclusion of the trial proceedings. See, e.g., Jones v. State,

98 S.W.3d 700, 703 (Tex. Crim. App. 2003) (stating that “[i]f the defendant decides to

appeal, the [trial] attorney must ensure that written notice of appeal is filed with the trial

court”) (emphasis added). 7 In Jones, we recognized that in many instances trial counsel

7
See also American Bar Association, Criminal Justice Standards, Defense Function, Standard 4.9-
1(a)–(d), “Preparing to Appeal” (“If a client is convicted, defense counsel should explain to the
client the meaning and consequences of the court’s judgment and the client’s rights regarding
appeal . . . . Defense counsel should take whatever steps are necessary to protect the client’s rights
of appeal, including filing a timely notice of appeal in the trial court, even if counsel does not
expect to continue as counsel on appeal. Defense counsel should explain to the client that the client
Shed - 5

will not be representing the defendant on appeal, and in those situations, trial counsel

should present the defendant’s signed pro se notice of appeal alongside counsel’s motion

to withdraw. See id. (“A ‘contemporaneous’ presentation of the pro se notice with a motion

to withdraw by trial counsel serves as actual notice to the trial court of the defendant’s

desire to appeal.”). 8 There is no valid reason to delay the filing of the notice of appeal until

appellate counsel becomes the official attorney of record. Countless times we have seen

miscommunication between trial and appellate counsel, or a delay in retaining or

appointing appellate counsel, which then results in the defendant missing the deadline for

filing his notice of appeal. Because of this risk, trial counsel should take the simple step of

ensuring that the defendant’s appellate rights are immediately protected by presenting the

notice of appeal alongside counsel’s motion to withdraw. Had trial counsel done so in this

case, Applicant’s right to appeal would have been protected before appellate counsel was

appointed, thereby preventing the error that ultimately occurred.

Although trial counsel committed the first error here by not filing the notice of

appeal, appellate counsel also carries blame here; a prudent appellate attorney should

always ensure that the notice of appeal has, in fact, been timely filed. If appellate counsel

has a right to counsel on appeal (appointed, if the client is indigent), and that there are lawyers
who specialize in criminal appeals. Defense counsel should candidly explore with the client
whether trial counsel is the appropriate lawyer to represent the client on appeal, or whether a
lawyer specializing in appellate work should be consulted, added or substituted.”) (emphasis
added).
8
In Jones, we further explained that to satisfy his duties, trial counsel may either “sign the notice
himself, in which case, he effectively ‘volunteers’ to serve as appellate counsel,” or, “the defendant
may file the notice pro se, which serves as an indication that trial counsel does not wish to pursue
his client’s appeal.” Jones, 98 S.W.3d at 703 (citation and internal quotation marks omitted).
Shed - 6

is unsure whether the notice has been filed, she should check with trial counsel and/or the

trial court. And if, as in this case, appellate counsel knows or believes that trial counsel did

not file a notice of appeal, and she takes on the responsibility of doing so herself, she should

verify the applicable filing deadlines and comply with them. In this case, appellate counsel

both missed the deadline for filing the notice of appeal, and, inexplicably, she then further

failed to file a motion for extension despite being advised to do so by the court of appeals.

Trial attorneys must fulfill their obligation to file a notice of appeal to avoid these types of

problems from the outset, but under the circumstances here, I recognize that appellate

counsel bears the ultimate responsibility for the mistake that occurred in this case.

As a final note, while appellate counsel’s mistake can be “fixed” by allowing

Applicant to file an out-of-time appeal, this “fix” is not without consequences. In addition

to significantly delaying resolution of Applicant’s direct appeal, appellate counsel’s error

has also now resulted in the habeas court and this Court having to expend resources to undo

the effects of the error. While we are all human beings who make mistakes, based on the

sheer volume of writ applications this Court sees annually in which this or similar problems

arise, it is my ethical obligation to bring attention to this issue so that attorneys may be

reminded of the effect of failing to stay on top of their responsibilities. 9 It is my hope that

both trial and appellate attorneys will implement practices to help reduce the need for such

corrective post-conviction litigation in the future.

9
See Tex. Code Jud. Conduct, Canon 3(D)(2) (“A judge who receives information clearly
establishing that a lawyer has committed a violation of the Texas Disciplinary Rules of
Professional Conduct should take appropriate action.”).
Shed - 7

III. Conclusion

With these comments, I join the Court’s opinion granting Applicant relief.

Filed: June 26, 2024

Publish